Lind v. Grimmer, 93-16021
| Decision Date | 22 July 1994 |
| Docket Number | No. 93-16021,93-16021 |
| Citation | 30 F.3d 1115 |
| Parties | 22 Media L. Rep. 2313 Ian Y. LIND, Plaintiff-Appellee, v. Gary G. GRIMMER; Linda K. Rose-Hill; James C.F. Wang; Robert Y. Watada, Individually, and in their capacities as Commissioners of the Campaign Spending Commission, State of Hawaii; and Jack M.K. Gonzales, Individually, and in his capacity as the Executive Director of the Campaign Spending Commission, State of Hawaii, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Steven S. Michaels, Deputy Atty. Gen., Honolulu, HI, for defendants-appellants.
R. Malia Taum, Honolulu, HI, for plaintiff-appellee.
Appeal from the United States District Court for the District of Hawaii.
Before: SCHROEDER, D.W. NELSON and CANBY, Jr., Circuit Judges.
Opinion by Judge CANBY.
Hawaii Rev.Stat. Sec. 11-216(d) prohibits disclosure of information concerning investigations undertaken by Hawaii's Campaign Spending Commission. The State of Hawaii appeals the district court's grant of summary judgment, which enjoined enforcement of the statute on the ground that it violates the First Amendment of the United States Constitution, both as applied to appellee Lind and on its face. We affirm.
When a complaint is filed with Hawaii's Campaign Spending Commission, the Commission is required to determine whether there is probable cause that a campaign spending violation occurred, and if so, whether that violation was unintentional or willful. Haw.Rev.Stat. Sec. 11-216. If the Commission finds probable cause that a willful violation occurred, it must advise the lieutenant governor, and it may initiate a prosecution. Haw.Rev.Stat. Sec. 11-216(f)-(g). If it finds probable cause that an unintentional violation occurred, it must order the cited party to remedy that violation. Haw.Rev.Stat. Sec. 11-216(f). If it finds no probable cause, it need take no further action. See id.
At issue in this appeal is Haw.Rev.Stat. Sec. 11-216(d), which requires that all aspects of the Commission's activities remain confidential while an investigation is pending, and that the entire record of an investigation remain confidential if the Commission determines that there is no probable cause that a violation occurred:
Until a determination of probable cause is made by the commission, all proceedings, including the filing of the complaint, investigation, and hearing shall be confidential unless the person complained of requests an open hearing. In the event the commission determines that probable cause does not exist, the complaint shall be dismissed and the entire record of the proceedings shall be kept confidential at the option of the person complained of. Breach of this provision is a crime punishable by up to thirty days in jail and a fine of up to $1,000. Haw.Rev.Stat. Sec. 11-228; Sec. 706-663.
Appellee Ian Lind was author, editor, and publisher of the "Hawaii Monitor," an independent non-partisan newsletter devoted to discussing election campaign issues. In June of 1992, Lind published in his newsletter the fact that he had filed a complaint against the University of Hawaii Professional Assembly alleging that the Assembly failed to disclose certain campaign contributions during the 1990 election and that it made excessive and prohibited contributions in support of Governor John D. Waihee's election. The Assembly responded by asking the Commission to clarify the applicability of section 11-216(d) to Lind's complaint. The Commission, in turn, decided to treat this request as a complaint against Lind for violation of section 11-216(d). Lind responded by bringing this action in federal district court seeking a declaration that section 11-216(d) violated his rights under the First Amendment, and an injunction against its enforcement.
Just fifteen days after Lind's complaint was filed, the parties submitted to the district court a stipulation of settlement, proposing that the court dismiss Lind's complaint with prejudice and declare that section 11-216(d) violated the First Amendment and was unenforceable. The district court, however, refused to do so without additional briefing. Thereafter, the State changed its position and decided to defend the statute. Following cross motions for summary judgment, the district court held section 11-216(d) unconstitutional as applied to Lind, held it unconstitutionally overbroad, and permanently enjoined its enforcement. This appeal followed.
A statute regulating speech is content-neutral only if the state can justify it without reference either to the content of the speech it restricts or to the direct effect of that speech on listeners. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989). Here, the State asserts a variety of purposes for section 11-216(d); it serves: (a) to prevent the Commission's credibility from being invoked to support "scandalous charges," (b) to protect "fledgling political groups and candidates [from] the publicity that would befall them from open proceedings," (c) to prevent candidates and their supporters from being "unduly tarred by a vindictive complaint," (d) to promote settlement of disputes over violations of spending laws, and (e) to eliminate distractions and collateral concerns that would exist if commission proceedings were made public. Because these concerns all stem from the direct communicative impact of speech, we conclude that section 11-216(d) regulates speech on the basis of its content. 1 Moreover, the speech it restricts, speech about political processes and governmental investigations of wrongdoing by public officials, falls near to the core of the First Amendment. See New York Times v. Sullivan, 376 U.S. 254, 270-71, 84 S.Ct. 710, 720-21, 11 L.Ed.2d 686 (1964). Therefore, the statute is presumptively unconstitutional. See R.A.V. v. City of St. Paul, --- U.S. ----, ----, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305 (1992). It will survive scrutiny only if it is narrowly drawn and is necessary to serve a compelling state interest, Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 1164, 99 L.Ed.2d 333 (1988), or if the speech it regulates otherwise is undeserving of full protection, see, e.g., R.A.V., --- U.S. at ----, 112 S.Ct. at 2543 (listing categories); Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) ().
It is clear that the speech restricted by section 11-216(d) does not fall into any of the traditional categories, such as fighting words and obscenity, that are undeserving of full First Amendment protection. Nonetheless, Hawaii contends that the First Amendment does not protect individuals who divulge the fact that they have filed a complaint with its Campaign Spending Commission. It relies on Cohen v. Cowles Media Co., 501 U.S. 663, 111 S.Ct. 2513, 115 L.Ed.2d 586 (1991). In Cowles, the Supreme Court considered whether the First Amendment barred a plaintiff from recovering damages under Minnesota's promissory estoppel law when a newspaper breached its promise of confidentiality given to the plaintiff in exchange for information. The Court held that the First Amendment did not bar recovery, for two reasons. First, it noted that promissory estoppel is a law of general applicability, and its application to the press posed only an "incidental" and "constitutionally insignificant" burden on speech. Id. at 670-72, 111 S.Ct. at 2519. Second, the Court observed that the agreement between Cohen and the newspaper was in the nature of a contract, and that any legal obligations and restrictions on publication of truthful information therefore were "self-imposed." Id. The State argues that Lind similarly struck a bargain with the Commission when he filed a complaint knowing that, by doing so, he would be subject to section 11-216(d)'s confidentiality provisions. The State contends that he therefore imposed section 11-216(d)'s restrictions on himself, and like the newspaper in Cowles, cannot now complain that those restrictions violate his First Amendment rights.
This novel argument is based upon a dramatic misconception of both the import of Cowles and the effect of section 11-216(d). Section 11-216(d) is not a content-neutral law of general applicability, but one intended to impose direct and significant restrictions on speech. Thus, the State is not relieved of its burden (as was the plaintiff in Cowles ) of demonstrating that the challenged provisions are necessary to serve a compelling interest. As we point out below, it has failed to carry that burden. Furthermore, the restrictions placed on Lind's speech, embodied in section 11-216(d), are state-created, and existed independently of, and prior to, any interaction between Lind and the Campaign Spending Commission. Therefore, the interaction between Lind and the Commission cannot be characterized as a simple bargain in which Lind obtained use of the Commission's investigatory machinery in exchange for his silence. The State may not condition Lind's ability to trigger an investigation on the theory that by filing a complaint he bargained away his First Amendment rights. Cf. Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). Cowles, in short, is irrelevant to the case at hand.
We conclude that section 11-216(d) regulates fully protected speech. 2 Unless it is narrowly tailored and necessary to promote compelling state interests, it cannot stand.
According to Hawaii, section 11-216(d) promotes its interest in "the free functioning of the electoral system," and in "fostering an 'uninhibited, robust, and wide-open' debate out in the political arena." We have no doubt that these are compelling interests. We conclude, however, that prohibiting disclosure that a complaint has been filed does little to serve these interests, and...
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